Abraham: A Question of Conscience

On April 3, 2008 the UC Berkeley Human Rights Center, the Boalt
Hall Human Rights Law Clinic, and the Boalt Hall Project on Law and
Terrorism sponsored a panel entitled A Question of Conscience: A Military Perspective on the "War on Terror".
This is the transcript of the opening statement made by Lt. Col. (Ret.) Stephen Abraham at that panel. The panel was held at 315 Wheeler Hall, University
of California at Berkeley. The other two members of the panel were Col.
(Ret.) Lawrence Wilkerson and Lt. Col. Stuart Couch. The
discussion was moderated by Adam Hochschild, from the UC Berkeley
Graduate School of Journalism. The recording of this presentation was
made by the UC Berkeley Human Rights Center; the transcript was
prepared by the UC Davis Center for the Study of Human Rights in the
Americas.

How quickly we tired of our constitutional rights, and how greatly we clamored for the illusion of security that we should so quickly, so easily, and so completely surrender one for the other.

In June of 2004 the Supreme Court decided, in an unusual moment, on the same day, two cases. And in those two cases, when examining the claims made as to the treatment of detainees, or more specifically, as to the hearings, stated emphatically, by the combination of the two opinions, that there must be a process that gives all regard to due process, for determining their status and deciding the question of whether they should be further detained or released. And just as importantly, the point that whether or not they are a citizen, that right applies, for as Justice Stevens said, it is a fundamental right, not merely an incident of citizenship.

In September of 2004, I was assigned to the Office for the Administrative Review of the Detention of Enemy Combatants--OARDEC-- in Washington, D.C. Ostensibly I was assigned as a member of the tribunal process, although at that point, it was in its nascence. It had just been constituted. The description of what it would do had just been put to pen. But what was known, a full two months before I even got there, was how long it would take to conduct every tribunal. In November of 2004, after having been involved directly and extensively in the very things that the Supreme Court ordered our organization to do--to seek all exculpatory evidence, and to engage in a process that gave full regard not to the spirit but to the actual parameters of due process--I was assigned to a tribunal. Two days before Thanksgiving, we heard the matter of a detainee. And after the hearing of that evidence, as amongst ourselves as to every bit of that evidence said, without hesitation, there can be no argument made based on what we received that this individual is or ever was properly classified as an enemy combatant, unlawful or otherwise. We are here today; he is still at Guantanamo today.

In December, a week after having participated in that tribunal, and upon reflection of all that I had seen, all that I knew, and all that I had done, I wrote a letter to the commanding officer of the organization refusing to participate in another tribunal. The existence of that letter would be denied until a week after I had testified before Congress, when in response to the statement that no such letter had ever been received by Admiral McGarrah, a copy was produced. I left OARDEC in February of 2005, certain that, contrary to the statements of then the Secretary of the Navy, the organization had not, despite its best efforts, given full regard to due process.

In June of 2007, I was asked by attorneys, having learned of my participation in the tribunal quite by accident, to look at a declaration of Admiral McGarrah, at that time, the director of OARDEC. It was, I think, much to my surprise not merely the statements that he made regarding the organization and the hearings that had been held, but the willingness of so many people to believe every statement made. We’re not talking about torture. We’re not talking about interrogations. We are not in any way marginalizing the scope of the debate. As I read the declaration, the profound understanding I had at that point as to America’s understanding of the debate, barring a few pictures and some openly discordant statements about the existence of Guantanamo, was that America largely knew absolutely nothing about Guantanamo.

As we sit here today, the debate is not about Guantanamo; it is about here. It is not about the application of military law, but the application of all of our laws that stem in large part from the Constitution. It is not about detainees by whatever names we may give them, but about every one of us. And it is not about torture as much as it is about the invoking and exercising and recognition of every fundamental right. To be very clear, I think it’s important to know precisely what happened at its core what was the beginning of the process by which we so easily and others so easily were able to label people as enemy combatants or even as terrorists. I could spend hours explaining to you the type of evidence, so to speak, that I saw and that was gathered and ultimately that was used essentially to convict individuals by reference to a class and category of status that might not even have applied to them. But we don’t have that much time. So instead what I would like to gird you with is a simple question that you should be willing to offer in response to any statement regarding the existence of Guantanamo, and it’s very simply the one word: why. And if I may, let me just take a moment to give you a few examples of when you can apply it.

The detainees are being held at Guantanamo. Why? The answer that was given was that they would be beyond the reach of the federal courts. Why? So there would be no examination as to the basis for their being detained. Why? So there would be no arbitrary timetable applied to that detention ultimately allowing, potentially, for their indefinite detention. Why? Because we didn’t know enough about them to be able to distinguish somebody who might be a terrorist from somebody about who we know nothing. Why? Because of very specific intelligence failures that lead us to the point in time where it is necessary, by the claims of some, to detain these people for so long. Why? Because they might have information, and that itself is a justification for keeping them. Why? Because fundamental human rights will no longer apply, when, because of a transient determination of national imperative, it is more convenient to hold somebody without justification because of fear, no matter how well reasoned, that if we do not hold them, something may happen to us. Why?